Political Casuistry, Sophistry, BS

Ninety years ago, political scientist Harold Lasswell, observed that “political man” is one who has displaced private motives on to public objects and rationalized them in terms of the public interest. While psychoanalyzing our political leaders would be most interesting, the Supreme Court appointment process provides some very clear examples of how political motivations are rationalized in terms of the public interest. Such rationalization typically involves the masking of true motivations by offering ones that are deemed more politically worthy. What results is political casuistry, which might otherwise be recognized as sophistry, or more colloquially abbreviated as plain old BS.

The Supreme Court vacancy process in the last two presidential election years has produced exceptional controversy. In 2016, the death of Justice Scalia on February 13 produced a nomination by Democratic President Obama on March 16, only to be ignored by the Republican-controlled Senate for the remainder of Obama’s presidency. In 2020, the death of Justice Ginsburg on September 18 resulted in a nomination by Republican President Trump on September 26, one that the Republican Senate Majority Leader McConnell has promised to expedite.

It doesn’t take a political scientist to understand what’s up. Both parties are driven to fill federal judgeships, and Supreme Court nominations are especially important. In June of 1968, a presidential election year, Democratic President Johnson moved to fill the Chief Justice position with a sitting justice (Fortas) and submitted a nomination to fill that anticipated vacancy. Opposition to the nomination from Senate conservatives resulted in an effective filibuster, which in that day required a two-thirds vote to overcome. The nomination failed and was withdrawn in early October. The proximity to the election resulted in no further action by the president to fill the Chief Justice position.

Fast forward to mid-March, 2016. President Obama nominates Merrick Garland to replace the conservative icon Antonin Scalia. This would likely produce a 5-person liberal bloc on the Court. What do you, as the Republican Majority Leader in the House, do? With only a two-person majority in the Senate, three could conceivably cross over to vote for Garland. On the other hand, Republicans could conceivably filibuster the nomination, requiring 60 votes to shut down. While keeping the seat vacant means having the Court operate with only eight justices from October until February or later in the 2016-17 term, if Republicans win the presidency, you can keep the Court more conservative than not.

Not following the advice and consent requirement of the Constitution because you want to make certain the vacancy is filled by one with good conservative credentials doesn’t seem like a rationale that will be appreciated by anyone but the conservative base. What the Republicans came up with was this: “The American people are perfectly capable of having their say on this issue, so let's give them a voice. Let's let the American people decide,“ said, Majority Leader McConnell. Republicans embraced this rationalization of their real motives. House Speaker Paul Ryan said, “This has never been about who the nominee is. It is about a basic principle . . . We should let the American people decide the direction of the Court.” Thus, the principle is clearly enunciated—in a presidential election year, we wait to let the next president choose. Do they really believe what they say, or is this just BS? It’s not casuistry yet. One needs a second or even third opportunity to apply the principle. We must wait until 2020 to find out. We do know that they didn’t literally mean what they said. The American voters expressed a preference for Hillary Clinton to be president. By the Republican rhetoric, her preference should receive the nomination. What McConnell, Ryan, and other Republicans must have meant to say was, “We should let the American presidential electors decide the direction of the Court.”

Here we are in 2020. And on the very day that Justice Ginsburg died, McConnell said,

Americans re-elected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.

When confronted with the principle espoused in 2016, McConnell argued his stance was not hypocritical, because in 2020, Republicans control both the White House and the Senate, unlike 2016 when the Democrats held the White House and the Republicans the Senate. The goal, of course, has not changed, namely, fill the Court with as many Republican appointees as possible. But a new rationalization is needed, the “it’s a presidential election year, so we should let the people have their say” won’t work. Some new principle is needed. Bring on the casuistry.

This time, multiple rationales come forth. McConnell provided one. Republican Senate Ted Cruz brought on another, noting that nominations in presidential election years are not uncommon, noting there have been 29 presidential-election year nominations. A closer look, however, reveals that 13 of those 29 nominations were actually made after the election, not before it. Another 13 occurred in the first half of the year. The other three pre-election nominations came on July 14, July 18, and August 16. This most recent nomination of September 28 is only 36 days before the election. Moreover, the past 100 years have produced nominations in presidential election years only four times. Cruz’s effort to portray this nomination in a presidential-election year as not uncommon is disingenuous. Casuistry strikes again.

Another popular Republican rationalization for filling the vacancy this close to the election argues that the 2018 midterm election provided a mandate to do so. As Republican Senator Tom Cotton said, “There could not have been a clearer mandate, because the American people didn’t just reelect Republicans. They expanded our majority.” This assertion fails on two levels. The gain of two seats in the Senate was a distinct underperformance for the Republicans. Of the 35 Senate seats up for election, 26 were held by Democrats, including ten in states that Trump won in 2016. Republicans had a legitimate hope of achieving a ten-seat gain in the Senate. Instead it was only two, taking four seats in red states that had Democratic senators but losing two that flipped Democratic. If any message was delivered to the Senate in 2018, it was that Republicans were in trouble. Cotton’s mandate claim also fails because there is no such thing as a mandate for the Senate from the American people. Senators are not selected by the American people. They are elected by voters of their respective states, voters whose motivations can vary considerably. Moreover, close to a third of the states don’t even elect a Senator in any given election year. The Senate can never claim to have a mandate from the American people.

If you want to know what the American people want the Senate to do, ask them. To do so found that in 2016, the preference was for the Senate to consider the nomination of Merrick Garland. In 2020, it appears the preference is for the nomination to fill the Ginsburg vacancy be made by the winner of the 2020 presidential election.

What is preferable to rationalizing one’s motives by appealing to the public interest is honesty. Put simply, it’s the president’s job to nominate and the Senate’s job is to confirm or reject that nominee. The Senate can choose to do nothing, or it may move it along as it wishes. The important thing is to have someone on the Court who has the right values. Conceivably, for example, if Obama had withdrawn the nomination of Garland and put a recognized conservative jurist in his place, the Republicans might have moved on it. Of course, that wasn’t going to happen.

Waiting until after the election does seem like the right thing to do. Perhaps a principle should be developed and adhered to. The median number of days between nomination and confirmation of the most recent nine justices is 77. Perhaps three months prior to the election might serve as a suitable nomination-free period.

Regardless, here we are. The Republicans have proceeded. They will almost surely confirm Barrett to replace Ginsburg. But if the Democrats win both the presidency and the Senate, there could be hell to pay for the Republicans. With respect to the Court, that could involve anything from withdrawing certain types of cases from Supreme Court jurisdiction to increasing the size of the Court. Again, political casuistry should flourish on both sides, but the best strategy may be just to tell the truth about your motivations.

The Supreme Court and the Nuclear Option

The Democrats are in a no-win situation. No Republicans have indicated they will vote against Gorsuch. Majority Leader McConnell has strongly indicated he will meet any filibuster by the Democrats with the nuclear option (See The Senate page), eliminating the filibuster for Supreme Court nominees. If the Democrats don't filibuster, they gain little because the Republicans will simply employ the nuclear option with the next nomination. On the other hand, if the next nominee would replace a justice from the liberal bloc or swing justice Kennedy, the Democrats might have some hope of gaining three Republican votes against cloture or against too conservative a nominee. If there is nothing to gain from a filibuster of Gorsuch, perhaps it is best to try for an agreement with the Republicans that they will not filibuster Gorsuch if the Republicans agree to leave the filibuster in place for the next nomination, whoever it may be. The Republicans would be unlikely to agree.

A lot of blaming and rhetorical gamesmanship surround such actions. The Republican effort to blame the Democrats with the argument that no Supreme Court nomination has ever been subject to a partisan fillibuster is disingenuous. The nomination of Abe Fortas by President Lyndon Johnson to be Chief Justice was successfully filibustered by Senate conservatives, mostly Republicans but with Southern Democratic conservatives joining in. Ideology was less aligned with political party in 1968, so in a narrow definition of partisan as being only members of one party, one might claim this was not a partisan filibuster, but the conservative group that was a coalition for that day, is now firmly embedded in the Republican party today.

Whether a filibuster should be permitted for Supreme Court nominees is independent from whether it should be permitted for federal judges and other presidential nominations. It is also independent from whether the failure to consider Obama's nomination of Garland was the equivalent of a filibuster. Perhaps neither should have happened, but they stand as independent political events. So too does removing the filibuster as an option for Supreme Court nominees. Permitting a filibuster to exist in name only because you will override it if used is no filibuster option at all. If a super majority is needed for any appointments by the president, surely Supreme Court justice stands as the single most important position to which it should apply.

On a Pro-Democracy Movement

Immediately following Justice Scalia’s death, Senators McConnell and Grassley suggested “the American people . . . should be afforded the opportunity to replace Justice Scalia.” Their gambit that the election would produce both a Republican president and Senate has paid off. Their choice of words, however, serves to demonstrate both the hypocrisy inherent in political rhetoric and in the American political system.

Had they been true to their word, the opportunity to replace Scalia would have been given to Hillary Clinton. She was the choice of the American people, though not that of the presidential electors. At a minimum, the Senate should have taken up the nomination of Merrick Garland, the nominee-in-waiting. Of course, McConnell and Grassley glossed over that inconvenient truth and didn't skip a beat in equating the election outcome as representing the will of the American people.

More significant than the rhetorical gymnastics of politicians is the sad irony that a nation that touts itself as a democracy, that fights wars in the name of democracy, that implores other nations to give voice to the people in democratic elections has shown that it is not itself a democracy. For the second time in the past five elections and for the second of only three presidents in this century, the candidate approved by the people has been pushed aside, and the loser was inaugurated as our new president. The one rejected in a vote by the American people became the spokesperson for the American people, the Chief Executive, the Commander-in-Chief. That’s what passes for democracy in America.

Despite calls over the years for the direct election of the president, the system of electors chiseled in Constitutional stone will surely never be changed. The necessary two-thirds of Congress to propose and three-fourths of the states to approve any amendment is an insurmountable barrier. One of the compromises effected by the framers of the Constitution to entice small states into the union provided each state with the number of electors equivalent to its representation in the Congress. While the House obtains representation roughly proportional to the population of the state, large and small states alike have two senators and, consequently, two additional electors for however many they have based on the size of their House delegation. The resulting disproportionality is considerable and stands in stark defiance of the basic one person-one vote principle of democracy we require of our states. Wyoming, for example, has roughly one elector for each 195,000 residents; California has one for every 712,000 residents.

What America needs is exactly what it has supported around the world, a pro-democracy movement. Protests in opposition to specific actions and policies need to have a positive focus to bring about desired change. Demonstrations against actions of Donald Trump are important but there’s a more important principle at stake. The structural defects in our democracy must be set right. Everyone’s vote must be counted equally. That involves eliminating political gerrymandering, insuring proper registration of all potential voters, and, most importantly, allowing the people's choice for president to become the president.

There are workable fixes not requiring an amendment to the Constitution. Perhaps the one with the most traction at the moment is an interstate compact in which a state’s electors will be mandated to vote for the presidential candidate receiving the most votes nationwide regardless of the outcome of the vote in that particular state. This initiative, National Popular Vote, claims 11 states with 165 electoral votes have joined the compact with another 12 states and 96 electoral votes having had the resolution to join passed in at least one house of the legislature. The compact takes effect after enough states join to reach the 270 vote threshold.

Is this feasible? Initiated more than a decade ago, the results so far are underwhelming, though promising. But perhaps its time has come. The discrepancy between the popular vote and the electoral vote was stark, made all the more so by the rollback in policies as if most voters approved of these changes. But they do not, and the fact that America is not truly a democracy has never been more evident. While the Electoral College is the most glaring deficiency, political gerrymandering and voter registration problems are other issues. Poll after poll across states red and blue reveal support for the popular vote to determine the presidency. The time is ripe to harness the discontent with the electoral system and its aftermath, channeling it into a nationwide pro-democracy movement.

The Scalia Vacancy

Senators McConnell and Grassley suggest in a Washington Post opinion piece that “the American people . . . should be afforded the opportunity to replace Justice Scalia.” Would that we could, but there is no mechanism in the American political system for that to be done. The presidential election will be determined by an electorate (disregarding the electoral college for the moment) with numerous and varied motivations regarding their voting decisions. No president can claim a mandate for any specific policy decision based on his or her being elected. Even less can any particular outcome for the Senate races be deciphered as producing a mandate for any particular course of action.

McConnell and Grassley surely understand this and it would be refreshingly honest to say we oppose letting President Obama make a choice because we think the Scalia vacancy can help us win the presidency in November and maintain control of the Senate. And, if they wanted to be brutally honest, they could further say we don’t want to be in the position of having to reject an Obama nominee, which we can easily do, because it could jeopardize our vacancy.

But politics is not about honesty. It's about trying to persuade the public you occupy the high moral ground and that you have their best interests in mind, unlike your opponents. What will happen, of course, is that President Obama will forward a nomination to the Senate, presumably one whom he will tout as highly qualified, in an effort to make the Republicans as uncomfortable as possible. The Republicans then must either move or not move on the nomination, likely arguing that this nominee would tilt the Court in a most undesirable liberal activist direction.

One thing is for sure. This vacancy will add a most interesting dimension to this 2016 president election year.

The Court and Political Gerrymandering

If Congress’s approval rating was so low (10%) going into the 2012 election, why did over 90% of the incumbents in the House races win re-election? It starts with the fact that over 80% of the seats are considered safe—districts so disproportionately favoring one party as to virtually insure that the nominee from that party, incumbent or not, will be elected. That the Republican advantage of 33 safe seats proved to be exactly their margin of victory is no coincidence. While Democratic House candidates across the nation outpolled the Republicans by 49% to 48%, the Republicans nonetheless retain a 54% to 46% advantage in the number of representatives.

Why, you may ask, do the Republicans have so many more safe seats? Congressional districts are determined at the state level, and to the extent that a party can wield the power to draw the districts, it can parse them in a favorable manner. Take Pennsylvania, for example. Obama took the state, despite 50.9% of the electorate voting for the Republican House candidates compared to the 48.1% voting for Democrats. Close? Not really. That’s all it took for the Republicans to capture 14 of the 18 House seats (78%). The same was true in neighboring Ohio, the Republican House candidates gaining 51% of the vote but capturing 75% of the congressional seats. In both states, district boundaries were drawn by Republican legislatures with no effective input from the Democrats. On the other hand, two states over in Illinois, the Democratically-controlled legislature redrew the boundary lines to produce a +4 gain for them and a –5 for the Republicans, the state having lost one of its 19 seats due to the 2010 census. In Illinois, though, the Democratic total vote was 57% statewide, not so drastically different from the 67% of the available seats they won.

Some states have established commissions to draw districts in an effort to limit partisan control. In Arizona, for example, the nine districts were drawn to provide Republicans with four and Democrats with two safe districts. The remaining three were made competitive, and indeed they were. Although the Democrats did manage to take all three in 2012, the difference was only 3% in two of them and less than 0.5% in the other. The Republicans candidates received about 54% of the vote across all nine districts, but won only four of the nine seats (44%). In 2014 Republicans managed to pull out the close contest in District Two, now claiming five (55%) of Arizona's nine seats.

Ohio, Pennsylvania, and Illinois demonstrate the effectiveness of political gerrymandering, the drawing of districts designed to maximize the electoral advantage of one’s own party while marginalizing that of one’s perceived foes. As old as the republic itself, gerrymandering immortalizes Massachusetts Governor Elbridge Gerry, who signed off on the 1812 partisan redistricting by fellow Republicans (Democrats of the day) in which one of the districts bore some resemblance to a salamander.

Enter the Supreme Court.

The historical problem with gerrymandering is that the courts long considered it a political question that should not be addressed by the judicial branch. The Supreme Court ultimately found the 14th Amendment equal protection clause to require a one-person one-vote standard for districts and to enforce federal law regarding efforts to marginalize the voting power of various protected classes. Political gerrymandering, however, refers more directly to partisan efforts by one party against other electoral competitors.

That the Supreme Court is divided on the issue of political gerrymandering is no better illustrated than in this summary of the distribution of opinions written in the League of United Latin American Citizens v. Perry, a 2006 Texas case. It reads:

Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts II–A and III, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined, an opinion with respect to Parts I and IV, in which Roberts, C. J., and Alito, J., joined, an opinion with respect to Parts II–B and II–C, and an opinion with respect to Part II–D, in which Souter and Ginsburg, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Breyer, J., joined as to Parts I and II. Souter, J., filed an opinion concurring in part and dissenting in part, in which Ginsburg, J., joined. Breyer, J., filed an opinion concurring in part and dissenting in part. Roberts, C. J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Alito, J., joined. Scalia, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Thomas, J., joined, and in which Roberts, C. J., and Alito, J., joined as to Part III.

It should come as no surprise that the Court breaks along partisan lines. The conservative bloc attempts at every opportunity to declare political gerrymandering as a nonjusticiable matter, overruling a previous case that established otherwise (Davis v. Bandemer, 1986). Their initial effort came in Vieth v. Jubilier (2004) in which Pennsylvania Democrats claimed Republican-controlled redistricting marginalized Democratic voters and ensured a disproportionate Republican congressional delegation, not unlike that found in the 2012 election. Scalia, writing for only four of the justices, argued that the 18 years since Bandemer had failed to produce any “judicially discernible and manageable standards” for addressing political gerrymandering, justifying the conclusion that such claims should not be considered by the federal courts.

Justice Kennedy, as the fifth justice who agreed with the disposition of the case at hand, nonetheless rejected Scalia’s argument, claiming that just because a standard had not emerged in this case did not mean none might emerge in future cases. So, while Scalia attempts to claim political gerrymandering is nonjusticiable, only four justices say so. Five claim such gerrymandering may well be justiciable. In dissent, Justice Breyer was more explicit,

“. . . political gerrymandering that so entrenches a minority party in power violates basic democratic norms and lacks countervailing justification. For this reason, whether political gerrymandering does, or does not, violate the Constitution in other instances, gerrymandering that leads to entrenchment amounts to an abuse that violates the Constitution’s Equal Protection Clause [Vieth at 361-2].”

The Court & the 2012 Election

Little attention has been given this presidential election to the Supreme Court. Yet, for decades, the Court has operated with an ideological divide that results in numerous 5-4 decisions, most recently with Justice Kennedy typically determining whether the conservatives or the liberals will prevail. During the 2011 term, for example, 14 of the Court’s 42 nonunanimous cases were of this type—7 in which the conservative bloc prevailed and 7 the liberal bloc. Kennedy was on the winning side in 13 of those 14 cases.

Republican presidents since Nixon have made clear that creating a conservative Court in their own ideological image is a high priority, but in making 13 of the 17 appointments available during that time, they have continually remained one justice away from securing that goal. It has remained elusive, not only because Republican presidents have not always chosen justices who share their conservative values, despite their efforts to do so, but because the president must be abetted in this effort by a like-minded Senate. The switch-hitting Kennedy joined the Court roster only because a Democratic Senate thwarted the nomination of President Reagan’s first choice, Robert Bork.

The 2012 election has been characterized as one in which the choice has never been clearer between two different perspectives of the role of government and the nature of our polity. That the Court is a single justice away from being more consistently conservative or liberal when such issues come into play contributes to the significance of this election. The appointment power will rest with either Obama or Romney, but the critical confirmation authority remains with the Senate and control of the Senate is distinctly up for grabs. The pressure is on the Democrats. While they now control the Senate, 23 of the 33 seats being contested have been controlled by the Democrats, including two Independents who have caucused with them, the Republicans risking only 10 of their incumbent positions.

Of course, it takes a vacancy to make an appointment, and none of these justices seem intent on creating one. The median age of the last nine departing justices has been 79. Ruth Ginsburg is there already, while Antonin Scalia and Anthony Kennedy will be there in three years. And while there is nothing magical about reaching the median departure age (Stevens was 90 before his retirement), only one justice in the past 50 years has died while serving on the Court (Chief Justice Rehnquist). So, it is a reasonable expectation that these justices will prefer to retire (they can do so at full pay) at some point in their illustrious careers.

Regardless of the electoral outcome, any appointment that promises to solidify one bloc of justices over the other will be met with considerable opposition in the Senate. Neither party is in position to carry a sufficient number of seats to override a filibuster by the minority. It will get ugly because the stakes are so high. After all, it was one of those 5-4 decisions that gave us President Bush rather than President Gore.

The Kagan Vote and What It Signifies

Predicting the Senate vote in Supreme Court confirmations is not difficult, either a statistician or any political pundit could make a pretty good guess. Statistically, using the Judiciary Committee vote as a predictor has typically meant that there will be about six "No" votes in the Senate for every negative vote in committee. If Lindsay Graham is the sole Republican committee member to support confirmation, the remaining six "No" votes suggest about 36 "No" votes in the Senate. Were Graham to cast a seventh "No" vote in committee, however, it seems unlikely there would be 42 negatives for Kagan on the Senate floor. This is perhaps the most conservative Judiciary Committee contingent for the Republicans in the voting history of the committee, and unanimous opposition by those committee members does not signal solidarity among all Senate Republicans. The New England contingent of Snowe, Collins, Gregg, and now perhaps Brown will not necessarily follow suit. If those four support Kagan, then the Republicans are poised to cast 35 votes against confirmation. Assuming all Democrats adhere to the party line along with the two Independents, then Kagan will have 65 votes propelling her into the Supreme Court. If she manages to pick up Senators Graham and Richard Lugar of Indiana, then she can accumulate 67 confirmation votes. Sotomayor received 68 last year.

Except for the party leadership, though, such predictions are fairly useless. The vote will be what it is. Assuming, however, these numbers come to pass, what they reveal is a politicized confirmation process, one in which Republicans have come around to the view that they may oppose a nominee on the basis of her political ideology and the anticipated liberal positions she might favor in particular Court cases. Not all opponents will be willing to admit that. A number will couch their opposition in terms of the military recruitment narrative favored by the Republicans, but acceptance of that narrative is itself a function of political ideology. More so than Democrats, Republicans have been trapped by their own rhetoric that pillories any results-oriented approach to evaluating Court nominees. Conservatives are no less results-oriented than the rest of us, but they must couch their opposition in language that suggests they are not driven by ideological concerns. Democrats built their opposition to Robert Bork in 1987 precisely on the basis that he was simply too conservative, "outside the mainstream" being their contribution to the rhetoric that infuses the contemporary confirmation process.

Those who decry the partisanship represented by the forthcoming vote fail to understand that the Court itself is part of the political process and, as such, so too is the nomination and confirmation process. Recognizing this is actually the first step towards creating a more serious dialogue in the confirmation hearing, paving the way for a dialogue on alternative conceptions of constitutional and statutory language, as well as other jurisprudential constructs. Clearly the Court is more constrained than other political bodies, but one cannot ignore the differences between a Justice Scalia and a Justice Stevens and having a discussion that would permit views like their to be discussed and debated in a Senate confirmation hearing would constitute a great exercise in civic education.

Acknowledging political differences does not mean that a senator must always vote his or her partisan preference. Like Lindsay Graham, a bona fide conservative, a senator could reason that Kagan is a liberal and likely to favor positions on cases before the Court that would be at variance with his. However, she's the nominee of a liberal president, she's replacing perhaps the most liberal justice on the Court, and, for a liberal, she seems to possess the temperament, intelligence, professional competence, and integrity that he hopes would characterize both liberals and conservatives on the Court.

Kagan will take her place on the Court, and the Court will be changed to some degree. She is not John Paul Stevens, and as yet, neither we, nor even she, know who Justice Elena Kagan will be.

Kagan Critique of Process Intact

It appears that Elena Kagan's critique of the confirmation process remains largely intact. The best opportunity for a change in the process evaporated when Kagan opted to follow precedent and refuse to address issues that might conceivably come before the Court, which, of course, eliminates pretty much anything we really want to know. Her testimony might give even the Democrats pause, considering the ease with which she was ready to accept as "settled law" even a 5-4 decision on gun control that came down on the first day of her committee appearance. It appears, however, that “settled law” means little more to her than “precedent.” Marbury v. Madison is settled law, except perhaps to Justice Scalia. For conservatives, Roe v. Wade is a precedent, a wrongly-decided case they certainly do not view as settled law. Democrats surely hope that a number of recent 5-4 cases decided by the conservative majority are not settled law, but have only a tenuous precedential value that could some day swing differently.

What is the rationale for not responding to questions on issues that might come before the Court? David Souter may have stated it best in his confirmation hearing:

If the judicial process is nothing else, it is a process in which in every court and on every issue that may come before a judge, the people who come before him can have a fair hearing . . . . a fair hearing requires a willingness of the court not only to listen, but genuinely to examine the position which the court is inclined at that point to take.
Anything which substantially could inhibit the court’s capacity to listen truly and to listen with as open a mind as it is humanly possible to have should be off-limits to a judge. . . . can you imagine the pressure that would be on a judge who had stated an opinion, or seemed to have given a commitment in these circumstances to the Senate of the United States, and for all practical purposes, to the American people?

In addition to the argument that nominees should avoid any appearance of having prejudged important constitutional questions, Senator Hatch has also argued that the Senate should avoid any “ideological inquisition” that might stir up political partisanship concerning the nomination. Guess which nomination that was, Bork or Kagan?

The argument in favor of the kind of exchange that Kagan advocated in her 1995 book review article is the right of the people and the need of the senators to know what kind of justice this nominee is likely to be. In 1981, Senator Denton told nominee O’Connor, "It is my earnest hope that your response will be neither broad nor bland, because I will base my single vote on those responses." Nineteen of Denton’s 23 questions dealt with abortion, and his futile attempt to draw O’Connor out on the topic would have produced a “No” vote from him, as promised, except he yielded to pressure from the Republican leadership and abstained in the committee vote and voted affirmatively in the full Senate.

The Senate has long ago reached a point of reasonable acceptance regarding the suitability of questions pertaining to a nominee’s constitutional and judicial philosophy. It has not yet reached a point at which the burden of proof has been laid on the nominee and the nominee’s supporters. That likely will not happen until some senator, some day, stands up to vote “No” on a nominee because of the nominee’s refusal to be forthcoming to questions from the Committee. Senator Specter may be ready to take that step.

Kagan v. Senate Judiciary Comittee

I can’t recall any Supreme Court nominee having written in advance on the nature of confirmation hearings, prescribing what that process should entail. (That may say more about my memory than reality.) In a 1995 book review (62 U.Chi.L.Rev. 919), Kagan asserted that “the Senate's consideration of a nominee, and particularly the Senate's confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.” Specifically, she argued that confirmation hearings should address a nominee’s judicial philosophy as well as how this philosophy might be applied in practice, “by evoking a nominee's comments on particular issues--involving privacy rights, free speech, race and gender discrimination, and so forth--that the Court regularly faces.

While this might be the ideal in a confirmation hearing, it typically fails to achieve that level of forthright and informative discourse. The president’s political opposition, whether it be in the Senate or among the advocacy leaders, is too intent on seizing any and all opportunities to frame responses into opposition bullet points that can excite public opinion which, in turn, can be leveraged to their financial and political advantage. Cognizant of the opposition strategy (in part because they’ve been there and done that) the nominee’s supporters are too intent on limiting the discourse so that it cannot generate sufficient fodder to arouse controversy and substantial opposition in the public sphere, perhaps jeopardizing the nomination.

The result is a rather strange dance of politics (closely resembling a loose canon), in which both sides refuse to admit that the process of evaluating Supreme Court nominees is driven by politics, except to note with some disdain that the “other side” is playing politics. In reality, of course, they are all engaged in politics, one strategy of which is to claim that you are not being political. The mere fact that the president gets to choose the nominee and the Senate gets to confirm or reject makes it political. There’s nothing wrong with that.

By admitting its political nature, the Senate and the nominee could actually begin to engage in the type of dialogue that Kagan envisioned for the process. Senators could oppose the nominee because they disagree with her political philosophy or her take on several key issues that have characterized the Court’s stormy history. Instead, we’ll have to hear the opposition assert that her lack of judicial experience is sufficient grounds for opposition, when apparently it was not for Louis Brandeis, Felix Frankfurter, Earl Warren, or William Rehnquist. Of course, those 19 months for Clarence Thomas was all that was needed to put him over the top, I suppose. We’ll also hear her characterized as a judicial activist, though only by those unable to see the activism of Scalia, Roberts, or others on the conservative wing of the Court.

What we need is dialogue that will permit us to perceive that this nominee has the intellect, the understanding of and ability to deal with significant constitutional issues, the integrity to faithfully interpret the constitution and laws as they understand them, and some sense about what that understanding is. As the number of closely divided Court decisions reveals, there are distinctly different points of view on any number of these principles. And it’s OK for a senator to decide his or her vote on agreement or disagreement with the nominee on this basis.

Opposing Sotomayor

Six of the seven Republicans senators on the Judiciary Committee are set to oppose the confirmation of Sonia Sotomayor. We may anticipate, then, that between 30 to 35 Republicans will oppose the nomination, presumably all 60 Democrats voting to confirm. Typically each "No" vote in committee is worth about 6 "No" votes in the Senate. The committee Republicans, however, are more solidly conservative than the party's overall membership, and Lindsay Graham's support does give some permission for other Republican conservatives to vote in favor of confirmation should they be so inclined.

In confirmation votes the problem for those wishing to vote "No" is not the vote itself, but providing a public rationale for that vote. The president's party has no problem; they can simply follow the president's lead. All will vote to confirm, and the most common explanation for that vote will be the judge's superb qualifications, which include her 17 years experience on the bench, her intellect, her background, her judicial philosophy, and perhaps her performance at the hearing, which resulted in more than 60% of the public favoring her confirmation and only 25% opposing it.

Republicans face a different problem. Some will follow the path of Judiciary Committee member Lindsay Graham. He starts from a position that offers some deference to the president as the one authorized to make the selection. Then, having accepted Sotomayor as qualified—with strong endorsements from various legal groups, most prominently the ABA, and her clear experience and record as a judge, along with her background and intellect, he must assess whether her extra-judicial statements established a bias and judicial philosophy that would sufficiently offset those positive attributes to permit a "No" vote. Ultimately, Graham decided he should take Sotomayor at her more moderate word and proceed to vote for confirmation.

John Kyl, Republican senator from Arizona, has no such problem. It was clear from his opening statement that he, along with Jeff Sessions, was set to pursue a negative partisan role. By characterizing Sotomayor's extra-judicial statements as partisan, biased, and injudicious, Kyl created a false dichotomy by which Republican opposition could be justified. Forget her bench record, that of being a judge with the apparent temperament and intellect to serve as a Supreme Court justice. Her past extra-judicial statements betrayed a bias that she would be unable to rein in as a Supreme Court justice. If Sotomayor stands by her statements, then one should vote "No" according to the Kyl logic. On the other hand, any attempt to explain away or moderate those statements can be characterized as a confirmation conversion, saying what she thinks they want to hear in order to gain their favor. This will be the basis for Republican opposition. Her performance at the hearing will have been insufficient to assuage Republican concerns that her biases will not adversely affect her judicial decision-making on the Court.

When Republican presidents in the 1980s adopted the strategy of appointing Federal Appeals Court judges to the Supreme Court, Republican senators followed by arguing that such judges had already been confirmed by the Senate once and that confirmation to the Supreme Court should follow. Judicial experience was key, and the lower court judicial record was sufficient evidence of their ability and temperament. Sotomayor presents a problem because she has more experience than any of them and her record supported Democratic claims of integrity and temperament. Indeed, the Ricci case could be interpreted as an example of Sotomayor's judicial restraint while exposing conservatives as being no better than liberals when it comes to seeking judicial outcomes consistent with one's political ideology. Now Republicans have had to admit that the Supreme Court provides a greater opportunity for personal values and beliefs to play a role in decision-making. To claim that such an affliction is only a liberal trait seems far-fetched but one Republican senators seem willing to make.

Conservatives, of course, are convinced that Sotomayor's decisions will closely track those of Justice Souter, which puts her in agreement with the more liberal wing of the Court—Souter and Ginsburg having an 87% agreement rate in the 2007-08 term of the Court's nonunanimous cases. (Typically about half to two-thirds of the Court's decisions have split opinions.) By the way, Alito and Roberts have similar agreement rates, as do Scalia and Thomas, the latter pair's agreement with Souter being around 35%. Moreover, they fear she may become a more vocal and forceful presence on the Court than Souter, a stronger (and younger) liberal counterpoint to Scalia.

Republicans are right to oppose Sotomayor if they want to oppose one whose liberal values will influence her decision-making just as Democrats were right to oppose Roberts and Alito from the perspective that their conservative values would influence their decision-making. What we need from both sides is an admission of that as the basis for their votes.

Do the Personal Views and Values of Justices Affect Their Judicial Perspectives?

The rationale for opposing the confirmation of Judge Sotomayor has now become clear. Republican conservatives will argue that she will allow her personal views and values to affect her decision-making on the Court. That view begs the following questions:

Do background and experiences affect perceptions and understanding?
Do perceptions and understanding affect opinions and perspective?
Do opinions and perspectives affect decisions, even of judges?

The answer to all three questions is “certainly they do.” Over sixty years of scholarly research have time and again confirmed what we all know to be true: people are different and their different beliefs, understandings, and perceptions differ by sex, by age, by ethnicity, by economic status, by upbringing, by education, and any number of other characteristics that define their very essence. Does donning the judicial robe empower judges to somehow hold these factors in check? Of course not. What does allow judges and justices to attain the impartiality we expect of them is not the impossible task of checking one’s values and experiences at the door, but putting them into play along side the critical capacity to be open to arguments and claims from perspectives other than their own. Moreover, they must possess the intellect and the intellectual honesty to discern when the law requires them to rule in a way that is inconsistent with their personal preferences.

Much publicity has been accorded a reference by Justice O’Connor of an assertion by Oklahoma Justice Jeanne Coyne that a wise old man and a wise old woman would ultimately reach the same conclusion. O’Connor spoke in the context of seeking to free both men and women from traditional role limitations. Her use of Coyne’s statement was taken out of context, first by Sotomayor in thinking that O’Connor was suggesting that both men and women were capable of wise decisions (yes, they are) and that they would reach the same conclusion (no they wouldn’t) and then by Jeffrey Sessions and other Republicans taking it more literally to connote that one’s sex or gendered perspectives should not influence one’s perceptions and interpretations of the law (but they do). O’Connor herself, of course, is the perfect example of a wise old woman who consistently found herself in the middle of eight wise old justices who could not reach the same conclusion, her decision determining which four would be empowered to join her in saying how we must now interpret the law of the land.

Tom Coburn blew the Republicans’ cover. In questioning Sotomayor about the second amendment, he moved into whether individuals have the right to self-defense. Her response noted the intricacies in such a question, applying legal evasiveness to what the good doctor thought should be a rather straight-forward “Yes” response. Somewhat frustrated, he said, “what American people want to see is inside (you) and what your gut says.” Coburn thus acknowledged what the Republicans know, but what Sessions, Kyl, and others have denied during this hearing—that experiences and personal feelings do indeed affect judges’ legal thinking.

Cases before the Supreme Court usually offer two or more very compelling but competing legal arguments, and the one that prevails rarely involves an unambiguous application of the law or Constitution. Republicans know that, and they also know quite well that those justices and judges who have similar value systems to their own will more often than not come down on the side of the argument that produces their “correct” outcome. That’s why they have spent so much time in previous nominations seeking personal views of nominees on a variety of issues, but particularly abortion. Justices are more amenable to those arguments and interpretations consistent with their own belief system, itself a product of one’s experiences and personal values.

It would be a lot simpler world if both Democrats and Republicans, liberals and conservatives, would simply admit their preference to place on the Supreme Court those justices who they believe are likely to interpret the law consistent with the senators’ own belief systems. Republicans, however, gained the upper hand in the public relations war by creating a myth that conservative jurisprudence and philosophy are somehow consistent with judicial restraint and impartiality, that conservative justices will reach decisions only by referencing the textual meaning and original intent of the law and constitution. Liberal jurisprudence and philosophy, they argue, promote judicial activism, reaching for outcomes based solely on personal preferences, overruling the will of the people as expressed through the legislative branch to create judge-made law, and disregarding the original intent of the framers of the Constitution. The conservative definition of judicial activism used to include ignoring the principle of stare decisis, overruling previous decisions of the Court to impose one’s own agenda. They have backed off from that aspect of judicial activism because they seek a Court that will overrule previous decisions that have produced liberal outcomes.

There’s nothing wrong with opposing a nominee on the basis of her perceived liberal or conservative predilections. Senators may apply any criteria they wish. The president has done so, and any senator may follow suit. The Senate is an equal partner in this process; it just doesn’t get to pick the nominee. It can, however, force the president to pick a different one. So oppose Judge Sotomayor, but do so because you are at odds with her presumed liberal philosophy, not by creating a bogus claim that she will somehow allow her experiences, value system, and judicial philosophy to influence her decision making as if Justices Roberts, Scalia, Thomas, or Alito do not.

The best we can do is to appoint justices who will achieve impartiality through blending their legal expertise with the intellectual capacity to open-mindedly weigh alternative arguments and reach the judgment they believe best comports with the legal principles at issue. To that end we also benefit from a Court that brings different perspectives to bear on the issues at hand.

Reality TV: The Senate Judiciary Committee Confirmation Hearing

Reality TV—purposive role-playing using contrived narratives purporting to show people in real-life situations. Wait a minute! That sounds like a Senate Judiciary Committee confirmation hearing. Indeed, the Senate can lay claim to having invented reality TV back in 1981 with the televised hearing for Sandra Day O’Connor’s confirmation. Now after a hiatus of more than three years, the Alito hearing of 2006, we have the Confirmation Hearing of Sonia Sotomayor, a four-day mini-series beginning July 13.

As show time nears, each of the committee’s 19 senators has one or more aides busily creating the senator’s script, an opening statement along with questions that the senator can ask the nominee. Development of this script is guided largely by what role the senator has defined as appropriate for this nomination. If you want to make sense out of what otherwise may appear as a mind-numbing, largely repetitive set of statements and questions, it helps to analyze what role you think the senator is playing and how he or she implements that role. Past nominations have revealed four roles commonly adopted by senators. You may be able to identify others.

Role selection is typically a function of two variables: one’s initial view of the nominee, which itself is usually a matter of party and ideology, and whether the nomination is perceived as controversial. Despite the Supreme Court’s recent decision in the Ricci case, the Sotomayor nomination has not achieved controversial status, meaning that her confirmation is certain, barring of course some hike on the Appalachian Trail.

You might think that the purpose of the hearing is to allow senators to gather information so they might decide whether to confirm or reject the nominee. A senator in that position plays the role of an evaluator, asking questions of the nominee that will address those key issues critical to the senator’s vote. Similarly, the opening statement will reflect the importance of the hearing and the nominee’s performance in helping the evaluator come to a decision. Never was that more clearly stated than by Jeremiah Denton when he told nominee Sandra O’Connor, “Your answers at this hearing . . . will determine my estimate of your position . . . and I will base my single vote on those responses.”

True evaluators in the confirmation hearing are rare, however. Senators have already spoken privately with the nominee and have gathered file drawers full of information about her. Most, therefore, come to the hearing with a sense of how they will vote. That being the case, then what are these senators going to do with their time?

One option is to choose the partisan role. A positive partisan supports the nomination and will use the opening statement to praise the nominee and build the case for confirmation. Questions to Sotomayor from the positive partisan will allow her to showcase her judicial temperament, expertise, intelligence, philosophy, and compassion. The negative partisan seeks to sink the nomination and uses the opening statement to construct the nominee as ill-suited to be a justice. Subsequent questions will attempt to discredit, embarrass, and otherwise show the nominee’s lack of fitness to serve on the Court. The difference between the positive and negative partisan was in stark contrast with the same nominee, Robert Bork. Republican Orrin Hatch opened by saying, “ I feel honored to welcome to the committee one of the most qualified individuals ever nominated to serve on the United State Supreme Court.” Democrat Ted Kennedy followed by asserting, “ Robert Bork falls short of what Americans demand of a man or woman as a justice on the Supreme Court.” The questions from these two senators clearly established their playing the roles of positive and negative partisan.

Whereas the partisan’s vote is already certain and questions are designed to help or hurt the nominee, the role of validator is played by one who is pretty certain about how he or she will vote and uses the hearing to confirm that expectation. Unlike the partisan, though, the validator asks questions to overcome any nagging doubts, any concerns that remain before confirming the decision to support or oppose the nomination. Clearly illustrative of this role is Senator Metzenbaum’s opening statement in Antonin Scalia’s hearing: “There can be little question about the fact that he is qualified for the position of association justice. My only area of concern relates to some of the views Judge Scalia has stated in a number of critically important areas.”

In the Sotomayor hearing, we shall surely see Democratic positive partisans making the case for her confirmation and helping her put her best foot forward. Nothing yet indicates any Republican senator plans to pursue a negative partisan role. Some Republicans may be true evaluators, using the hearing to come to a decision about their own up or down votes. A number of Republicans are likely to be validators, checking on key aspects central to their view about what a justice should be.

These three roles, however, don’t capture the behavior most likely to be evident. One can engage in partisan play only for so long, while evaluators and validators determine at some point what they came into the hearing to find out. These individuals then join others who adopted a fourth role, an advocacy role that manifests itself in a number of apparently different behaviors. Advocates have a message and a target for that message. The obvious target, of course, is the nominee. Thus, Senator Kennedy pursued the topic of civil rights with Chief Justice nominee John Roberts, attempting to secure concessions from him regarding the “irreversibility” of progress in civil rights over the past 50 years. Senator Grassley sought assurances from Roberts that the courts may not take initiatives to solve societal problems when the political branches are slow to act. Joseph Biden tried to persuade Sandra O’Connor that as the first woman appointee to the Court she could (and should) speak out on women’s rights.

Advocates may also target others, including fellow senators or their constituents back home. Advocacy is less about confirmation than it is about the senator demonstrating his or her earnest concern about certain issues and attempting to educate, advertise, and persuade or otherwise cajole the target into an appreciation of the senator’s position. Senators need to impress, but when you are thirteenth, fourteenth, on down to nineteenth in line for asking questions, it’s not easy and the advocacy role may be all that’s left to play.

So enjoy the mini-series, even though a surprise ending does not seem to be in the works. See if you can identify what role each senator is playing, observe shifts in role during the course of a senator’s questioning, and assess exactly what it is the senator is trying to accomplish in asking each particular question. If you would like to get a more complete description of these roles and examples of their application, go to the site “A Vacancy on the Court” at http://supremecourt.ws/sjc.html, the page on the Senate Judiciary Committee.

Sotomayor and the Ricci Case

Conservative opponents to the confirmation of Supreme Court nominee Sonia Sotomayor were provided with new ammunition in their flagging attempt to sidetrack her nomination. In a case (Ricci v. DeFastano et al.) coming out of the Second Circuit in which Judge Sotomayor participated, the Supreme Court decided in favor of the white firefighters (Ricci) who claimed the city of New Haven violated their Title VII civil rights by throwing out the results of a test required to qualify for promotion. In that test, white firefighters scored higher than the minority firefighters. The federal district judge had sided with New Haven (DeFastano et al.) and Judge Sotomayor joined with two of her colleagues in the Second Circuit to affirm the district court ruling. The Supreme Court now has overruled that decision.

This is a complex case that conservative opponents of Sotomayor have already tried to oversimplify as a straight-forward instance of racial discrimination against whites. Some will also try to paint this overturning of the Second Circuit as an indicator of Sotomayor’s lack of fitness to serve on the Court. Alas, both arguments constitute shameless efforts to influence public opinion, a public these advocates are counting on to be ill-informed about both jurisprudence and the workings of the Supreme Court.

With respect to the Supreme Court’s decision, Ricci was the winner because Justice Anthony Kennedy saw it that way. This was the fourth 5-4 decision in recent weeks in which Kennedy has decided whether the outcome will be one preferred by the Court’s four conservative justices or the four more liberal ones. In Ashcroft et al. v. Iqbal et al. Justice Kennedy wrote the Court's conservative opinion imposing limits on the liability of government supervisors. In Montejo v. Louisiana, the conservative bloc effectively reversed a 1986 precedent protecting a defendant's 6th Amendment right to have counsel present during interrogation by the police after one's arraignment. Subsequently, Kennedy joined his more liberal colleagues in Caperton et al. v. Massey Coal to rule that elected judges may have to recuse themselves in cases connected with individuals who were huge contributors to the election campaign of that judge. In each of these instances, had Kennedy sided instead with the minority of four, the Court decision would have been the reverse.

An argument that Sotomayor is somehow unqualified to be on the Court because of her affirmation of the district court’s ruling against Ricci fails on two fronts. First, circuit court judges have less latitude than do Supreme Court justices to break new ground in interpreting legal issues. Doing so would constitute the very judicial activism that conservatives purport to decry. Second, even assuming that Sotomayor would have decided against Ricci were she on the Supreme Court, and she likely would have, to say that disqualifies her from being on the Court is tantamount to saying that Justices Stevens, Breyer, Ginsburg, and Souter are unqualified to be on the Court, or that Justices Roberts, Scalia, Thomas, and Alito are unfit because of their minority opinion in the Caperton case. Interpreting the law is a complex endeavor that engenders reasonable differences of opinion. After all, without controversy, a case is not a case.

I believe it is legitimate to oppose the nomination of Sotomayor because you would prefer someone more in the mold of Alito or Scalia than of Ginsburg or Souter. Using the 5-4 decision in Ricci, however, to couch that preference in terms that question her very fitness or her bias, especially by people who know better, is fundamentally dishonest.

[This blog entry is part of the civic education project, "Vacancy on the Court," which may be found at http://supremecourt.ws]

Rhetoric and Rancor in the Confirmation Process: A Wee History

Ever yearn for those good old days when Supreme Court nominations did not generate such partisan rancor? Many consider that to be any time before the nomination of Robert Bork in 1987. Remember this reaction to his nomination?

“. . . taking into view [his] reputation, character, and professional career, he is not a fit person to be a member of the Supreme Court of the United States.”

Oops, my mistake. That comment wasn’t about Robert Bork; it was directed at Louis Brandeis in 1916. Woodrow Wilson did not shy away from nominating this intellectual giant, the first Jew to serve as a justice, but the opposition was fierce and the rancor distinct.

Still, that comment seems rather mild, almost gentile. Was it really that way back when? Let’s get more personal. What about “an office too important and dignified for a character not very far above mediocrity. . . [he is] wholly destitute of every qualification for that important station.” Or “[This nomination] is an affront to the Court and to the people. [It] is as menacing as it is unfit. [The president has] picked the one who would be generally regarded as the worst he could find.” Surely, these observations rank right up there with the comment made by a senator in voting against Clarence Thomas, “I cannot find a single distinguishing aspect of [this nominee's] legal career that would warrant his consideration for the Court.”

The “mediocrity” comment was directed at one of our very first justices, John Rutledge, nominated to be our second Chief Justice in 1795 by the Father of our Country. The “worst” comment was directed at Hugo Black in 1937, considered by many to be one of the strongest voices in the Warren Court of the 50s and 60s.

If we were to hear this following comment today, it would undoubtedly elicit complaints about how politicized the process has become: “Even those most acquainted with modern degeneracy were astounded at this abominable nomination.” But this comment came in 1811, directed at Alexander Wolcott, a nominee put forward by the Father of our Constitution, James Madison.

Hyperbole abounds in reactions to nominees. Of Roger Taney, an Andrew Jackson nominee, it was said, “[He administered]...the most dangerous blow which has been given our constitution and law. If [he] ... be now confirmed, all will be lost.” The “blow”was Taney’s undermining of the Second Bank of the United States, as Jackson’s Secretary of Treasury. Perhaps the statement was not overly aggressive: Taney’s majority opinion in the Dred Scott case is considered by some as moving the nation a step closer to the Civil War.

One of the most famous reactions to a nomination was made, not by an opponent, but by a supporter. Never was “damning with faint praise” more evident than in Senator Roman Hruska’s effort to support Nixon nominee Harold Carswell: “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises and Frankfurters and Cardozos . . .”

If there’s a lesson to be gleaned from all of this, it is that the process of appointing Supreme Court justices has always been partisan and political. While plaintive voices and oppositional reactions of advocacy groups have proliferated with expanding media fora, rancorous rhetoric has been common in the public sphere from the dawn of the republic. If it ever seemed otherwise, it was only because of solid Senate support for the president or because the president himself chose to exercise a politics of consensus rather than the politics of controversy in making a nomination.

And while we may legitimately decry the rancor, making the appointment process an adversarial one is not inappropriate. After all, the justice system itself assumes an adversarial system is the best way to find the truth.

[For more on this subject, visit "A Vacancy on the Court," a civic education project of Professor George Watson at http://supremecourt.ws]